DOCTORAL THESISdoctorate.ulbsibiu.ro/wp-content/uploads/Humelnicu-rezumat-engleza.pdf1 ministry of national education "lucian blaga" university of sibiu doctoral school field "law"

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MINISTRY OF NATIONAL EDUCATION

"LUCIAN BLAGA" UNIVERSITY OF SIBIU

DOCTORAL SCHOOL

FIELD "LAW"

DOCTORAL THESIS

- SUMMARY -

PRIVATE INTERNAL ARBITRATION IN REGULATION OF THE

PRESENT ROMANIAN CIVIL PROCEDURE CODE

(Note: given the restrictions determined by the "limited size" of "Summary" this

only includes a general description of judicial problems in the doctoral thesis,

without doctrinaire and jurisprudential analysis)

DOCTORAL COORDINATOR

Prof. univ. dr. d. h. c. IOAN LEŞ

PhD CANDIDATE

Augustin-Daniel HUMELNICU

SIBIU

2015

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PLAN OF THE DOCTORAL THESIS

CHAPTER I GENERAL ASPECTS REGARDING PRIVATE

ARBITRATION

1.1. THE CONCEPT OF PRIOR ARBITRATION

1.1.1. Preliminary notes.....................................................................................6

1.1.2. The notion of private arbitration...............................................................6

1.2. THE LEGAL NATURE OF THE PRIVATE ARBITRATION....................7

1.3. THE EVOLUTION IN TIME OF THE ESTABLISHED REGULATIONS

OF PRIVATE ARBITRATION

1.3.1. The private arbitration in ancient times..................................................8

1.3.2. The private arbitration in the old Romanian laws....................................8

1.3.3. The private arbitration in the regulation of the 1865 Romanian Civil

Procedure Law............................................................................................8

1.4. SEPARATING THE PRIVATE ARBITRATION FROM OTHER LEGAL

INSTITUTIONS............................................................................................9

1.5. ADVANTAGES AND DISADVANTAGES OF THE PRIVATE

ARBITRATION..............................................................................................9

CHAPTER II ORGANIZATION OF THE PRIVATE ARBITRATION

2.1. ORGANIZATION OF THE PRIVATE ARBITRATION BY THE

PARTIES .......................................................................................................11

2.2. ORGANIZATION OF THE PRIVATE ARBITRATION BY A THIRD

PERSON

2.2.1. Preliminary specifications........................................................................11

2.2.2. The notion of institutionalized private arbitration....................................11

2.2.3. Choosing the institutionalized private arbitration.................................12

2.3. REPRESENTATION OF THE PARTIES IN FRONT OF THE

ARBITRATION

COURT..........................................................................................................12

2.4. THE INTERVENTION OF THE COURT OF LAW IN THE

ARBITRATION

PROCEDURE.........................................................................................13

CHAPTER III THE ARBITRATION CONVENTION

3.1. PRELIMINARY NOTES.........................................................................15

3.2. the arbitration clause

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3.2.l. General information.................................................................................15

3.2.2. The validity conditions of the arbitration clause................................16

3.3. THE COMPROMISE

3.3.1. Preliminary notes...................................................................................16

3.3.2. Indicating the object of the litigation........................................................17

3.3.3. Indicating the arbitrators....................................................................17

3.4. COMMON REQUIREMENTS FOR THE VALIDITY OF THE

ARBITRATION CONVENTION

3.4.1. General information................................................................................17

3.4.2. Background conditions of THE ARBITRATION

CONVENTION.................................18

3.4.3. The nullity of the arbitration convention...................................................18

3.4.4. The caducity of the arbitration...............................................................18

3.4.5. The proof of THE ARBITRATION

CONVENTION...............................................18

3.4.6. The compromise during the lawsuit of a litigation........18

3.5. THE AFFECTS OF THE ARBITRATION CONVENTION

3.5.1. General information regarding the effects of the civil legal action..........19

3.5.2. Particular aspects regarding the effects of the arbitration convention....19

3.6. LITIGATIONS WHICH CAN BE ARBITRATED

3.6.1. General information...............................................................................19

3.6.2. Litigations which cannot be submitted to arbitration..............................20

CHAPTER IV THE ARBITRATION COURT

4.1. PRELIMINARY NOTES.....................................................................21

4.2. THE PERSONS WHICH CAN BE AN ARBITRATOR

4.2.1. Requirements for a person to be an arbitrator.....................................22

4.2.2. The number of arbitrators.........................................................................22

4.2.3. The appointment of arbitrators..............................................................22

4.2.4. Particularities regarding the arbitrators in the case of institutionalized

arbitration ........................................................................................22

4.3. THE ROLE OF THE ARBITRATORS

4.3.1. The legal nature of the arbitrator's

role.......................................................22

4.3.2. Accepting the arbitrator task ............................................................22

4.3.3. The power of the arbitrators ..............................................................23

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4.3.4. Termination of the arbitrator's role........................................................23

4.3.5. Liability of the arbitrators...................................................................23

4.4. THE COMPETENCE OF THE ARBITRATION COURT

4.4.1. Preliminary notes...............................................................................24

4.4.2. The content and limits or the arbitration competence.......................24

4.5. THE CONFLICT OF COMPETENCE IN TERMS OF ARBITRATION


4.5.2. The exclusion of the competence of courts of law......................................25

4.5.3. Checking the arbitration competence .................................................25

CHAPTER V ARBITRATION JUDGEMENT

5.1. COMMON PROCEDURE RULES

5.1.1. General information...................................................................................27

5.1.2. Procedural rules applicable to institutionalized arbitration....................27

5.1.3. Notification of the arbitration court......................................................27

5.2. ACTUAL ARBITRATION JUDGMENT

5.2.1. Communication of the procedural actions................................................28

5.2.2. Checking the file...............................................................................28

5.2.3. The summoning term..................................................................................29

5.2.4. Checking the competence of the arbitration court....................................29

5.2.5. The participation of the parties to the arbitration procedure...................29

5.2.6. The participation of third parties to the arbitration procedure................30

5.2.7. Insurance measures in the arbitration procedure..................................30

5.2.8. The proof and their presentation in the arbitration procedure............30

5.2.9. The language in which the arbitration procedure is performed................31

5.2.10. Place of performance of the arbitration.................................................32

5.3. INTERRUPTION AND SUSPENSION OF THE ARBITRATION

PROCEDURE


5.3.2. Cases of interruption and suspension of the arbitration procedure..........32

5.4. SOLVING THE LITIGATION BASED ON THE APPLICABLE LEGAL

REGULATIONS OR IN EQUITY


5.4.2. The presumption of solving the litigation according to the applicable legal

regulations.........................................................................................................33

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5.4.3. The power of the arbitrators which solve the litigation according to the

applicable legal

regulations.................................................................................................33

5.4.4. The power of the arbitrators which solve the litigation in equity .......33

CHAPTER VI THE ARBITRAL DECISION

6.1. THE LEGAL NATURE AND DRAFT OF THE ARBITRAL DECISION

6.1.1. The legal nature of the arbitral decision...................................................35

6.1.2. The preparation of the arbitral decision...................................................35

6.2. THE FORM, CONTENT AND OBJECT OF THE ARBITRAL DECISION

6.2.1. The form of the arbitral decision..............................................................35

6.2.2. The content of the arbitral decision.........................................................36

6.2.3. Clearance, integration and correction of the arbitral decision................36

6.2.4. Communication of the arbitral decision...................................................36

6.3. EFFECTS OF THE ARBITRAL DECISION

6.3.1. General information regarding the effects of the judicial decision..........37

6.3.2. Particular aspects of the effects of arbitral decision...............................37

6.4. ANNULMENT OF THE ARBITRAL DECISION


6.4.2. Legal nature of the trial in the annulment of the arbitral decision............37

6.4.3. Reasons of the trial in the annulment of the arbitral decision...................38

6.4.4. Restrictions regarding the admissibility of the nullity suit.......................38

6.4.5. The procedure for solving the annulment request of the arbitral decision

39

6.4.6. Execution of the arbitral decision.........................................................39

CONCLUSIONS..............................................................................................40

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CHAPTER I

GENERAL ASPECTS REGARDING PRIVATE ARBITRATION

SECTION 1.1.

THE CONCEPT OF PRIOR ARBITRATION

1.1.1. Preliminary notes

The development the arbitration knew in the past decades, the speed with

which it expanded, from the field of commercial law in general and of the

international commerce, in particular, where it is mainly applied, also to other

fields makes it a viable alternative to state law, which is more and more

expensive and particularly, less and less expedient.

Arbitration is not only an institution of Greek-Roman laic origin. It is also

referred to in religious documents.

In France, in the Middle Ages, arbitration is frequently mentioned in

foyers.

Presently, the arbitration is an institution found in all European countries,

in the American ones and in almost all African and Asian countries even if,

sometimes, the internal laws are not favourable to it.

The arbitration is not a substitute of state law, and it also doesn't aim to

prejudice its field. Between arbitration and state law there is no relation of

competition, but of completion, integration of the range of Civil Codes of

solving litigations. In any Civil Code, compared to state jurisdiction, the

arbitration has incontestable advantages.

1.1.2. The notion of private arbitration

Etymology and history make "arbitrator" and "arbitration", words coming

from the same family, have the meaning and connotations related to

"impartiality", "measure", "safety", "will", "decision" and "assessment".

In the current language, the term "arbitration" has the meaning of solving a

litigation by an arbitrator or leading a sports competition, also by an arbitrator.

In the legal language, in absence of a meaning established by the

lawmaker, the doctrine in the field offers to the notion of "arbitration" various

definitions.

In substance, "arbitration" is a "private jurisdiction with contractual

origin".

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Art. 541 paragraph (1) Civil Procedure Code evokes "the essential

elements", which can be used in order to outline a "definition" for private

arbitration: "contractual nature"; "alternative jurisdiction"; "non-state

jurisdiction"; "private nature". Another "essential" aspect is the "nature of the

litigations" which could be solved in this Civil Code.

In relation to us, private arbitration could be defined as the "non-state and

conventional alternative form of solving litigations, except the particular cases

provided by law, provided with the observance of public order and good morals

by the arbitrators assigned by the litigant parties or by a permanent arbitration

institution.

Finally, there are various "forms of arbitration": ad-hoc arbitration and

institutionalized arbitration; commercial arbitration and arbitration in terms of

labor litigations, equity arbitration (ex aequo et bono) and strict law arbitration

(stricto iuris); internal and international arbitration.

SECTION 1.2.

THE LEGAL NATURE OF THE PRIVATE ARBITRATION

In relation to the "legal nature" of arbitration, in the doctrine appeared

three thesis: "jurisdictional"; "contractual"; "dual".

The arbitration involves two elements: the "contractual" and the

"jurisdictional" one.

In the regulations prior to the creation of the arbitration court and the

beginning of its activity prevail the regulations which establish or evoke the

"contractual" nature of arbitration. Instead, in the regulations which hand over

the activity of the arbitration court and its completion by arbitral decision prevail

the provisions establishing or evoking the "jurisdictional" nature of arbitration.

"The hybrid nature" of arbitration cannot be contested.

Under the influence of the present Civil procedure code, the acceptable

solution is that arbitration has a "dual nature", a contractual one, through its

origin, and a "jurisdictional" one, through the procedure according to which is

performed and, especially, through the decision issued by the arbitration court.

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SECTION 1.3.

THE EVOLUTION IN TIME OF THE ESTABLISHED REGULATIONS OF

PRIVATE ARBITRATION

1.3.1. The private arbitration in ancient times

Traces of arbitration can be identified even in ancient times. So, the "Iliad"

and Aristotle's "Rhetoric" are evoked in the specialty literature.

In Roman Law, "the arbitration contract" was a convention, different from

nominate or innominate contract. The ex compromissio arbitrator was no longer

appointed by the magistrate, by appointed by the parties of the litigation.

1.3.2. The private arbitration in the old Romanian laws

In Romania, the arbitration is evoked for the first time in the "Legal

manual of Andronache Donici" in Moldavia, since 1814. Subsequently, this is

found in the "Calimach Code" in 1817 (Moldavia) and the "Caragea Code" of

1818 (Walachia). These regulations have taken over mostly the experience of

Greek and Roman legal experts in terms of arbitration.

1.3.3. The private arbitration in the regulation of the 1865 Romanian Civil

Procedure Law

Following the pattern of the French Civil Procedure Code of 1806 and of

the one of the Geneva Canton in 1819, the Romanian Civil Procedure Code in

1965 has regulated the "private arbitration" in Book IV (art. 340-371), which had

the marginal name "about arbitrators".

The provisions of Book IV of the old Civil procedure code have been

applied until the establishment of the communist regime, when their liberal

principles entered in conflict with the precepts of socialist law.

For almost five decades, until 1993, the provisions of Book IV in the old

Civil procedure code have not been applied anymore, without being formally

revoked. The incidence of the established regulations of arbitration has been

reduced to the segment of external commerce reports, the only arbitration

institution in Romania being the Arbitration Chamber attached to the Chamber

of Commerce and Industry of the Socialist Republic of Romania.

The actual operation of arbitration was performed since 1993, when Book

IV of the old Civil procedure code was substantially amended by point 20 of

Law no. 59/1993 for the amendment of the Civil Procedure Code.

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Currently, the Civil Procedure Code regulates the following aspects

regarding arbitration: general provisions (art. 541-547); the arbitration

convention (art. 548-554); the arbitrators (555-570); the arbitral procedure (art.

571-607); the dissolution of the arbitral decisions (art. 608-613); the performance

of the arbitral decision (art. 614-615); the institutionalized arbitration (art. 616-

621).

SECTION 1.4.

SEPARATING THE PRIVATE ARBITRATION FROM OTHER LEGAL

INSTITUTIONS

The separation of arbitration from other judicial institutions is of

considerable interest, practical as well as theoretical. Generally, the separation

between the various legal institutions is performed based on scientific criteria.

Concretely, in the case of arbitration, the main criteria are the "existence of a

litigation" and "the will of the parties ". Together with these "main" criteria,

there are also other criteria used, called "auxiliary", such as the background

check of the claims, in order to establish if they are grounded and the

incumbency of the arbitrator's decision for the litigants.

Usually in the doctrine, the separation is performed between the

arbitration, on one hand, mandate, transaction and mediation, on the other hand.

SECTION 1.5.

ADVANTAGES AND DISADVANTAGES OF THE PRIVATE

ARBITRATION

Advantages: the private arbitration evokes the idea of partnership between

the litigation parties; as the arbitral justice is performed through arbitrators

assigned by the litigants, it has a high degree of trust in relation to the state one;

the liability of the arbitrators for damages produced to the parties determine from

them a greater diligence for correctly solving the litigation; as the arbitration

procedure is essentially confidential, which is pretty important especially in the

relations between professionals; the arbitration procedure has the chance to

eliminate the useless, obstructive or redundant procedural issues; it increases the

chances to correctly solve the litigation as, by compromise or through the

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arbitration clause, the litigants can establish that the litigation between them is

solved by equity; the arbitration expenses are borne according to the convention

of the parties, circumstance which highlights the idea of partnership of the

arbitration; the arbitration procedure is distinguished by expedience; the

arbitration procedure has the same guarantees as the one performed in front of

the court of law; the arbitration procedure has great flexibility.

Disadvantages: the witnesses are not heard under oath; the arbitration

court cannot use constraint means and can't apply sanctions to witnesses or

experts; the insurance and temporary measures, as well as establishing de facto

circumstances, in case of resistance, can be decided only by the court of law

which would have had the competence of solving the litigation of the parties

hadn't appealed to arbitration etc.

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CHAPTER II

ORGANIZATION OF THE PRIVATE ARBITRATION

SECTION 2.1.

ORGANIZATION OF THE PRIVATE ARBITRATION BY THE PARTIES

Under the marginal name, "organisation of the arbitration by the parties",

art. 544 Civil Procedure Code, establishes the main rules regarding this

arbitration mean: the arbitration is organized and performed according to the

arbitration convention; under reserve of compliance with the public order and

good morals, as well as of the imperative provisions of the law, the parties can

establish by arbitration convention or by written document concluded

subsequently, the later once the arbitration court is established, either directly, or

by reference to a certain regulation having as subject arbitration, the regulations

regarding the formation of the arbitration court, the appointment, the dismissal

and replacement of the arbitrators, the term and place of arbitration, the

procedural regulations that the arbitration court must follow in judging the

litigation, including possible preliminary procedures for solving the litigations,

the division of the arbitral expenses among the parties and, in general, any other

regulation regarding the good performance of the arbitration. In absence of these

rules, the arbitration court can establish the procedure that shall be followed as

he thinks more appropriate. If neither the arbitration court has established these

regulations, the provisions established by the Civil procedure code shall be

applied.

SECTION 2.2.

ORGANISATION OF THE INSTITUTIONALIZED ARBITRATION


Art. 616-621 Civil Procedure Code form Title VII of Book IV (about

arbitration) and have the marginal name "institutionalized arbitration".

Practically, it regulates the following aspects: the notion of institutionalized

arbitration (art. 616); the choice of institutionalized arbitration (art. 617); the

arbitrators (art. 618); the arbitration rules (art. 619); the arbitration expenses (art.

620); the refuse to solve the litigation (art. 621).

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2.2.2. The notion of institutionalized private arbitration

According to art. 616 paragraph (1) thesis I Civil Procedure Code, the

institutionalized arbitration is that form of arbitral justice which is established

and operates permanently attached to an internal or international organization or

institution or as independent public interest non-governmental organisation,

according to the law, based on the independent regulation applicable in case of

litigations submitted to be solved according to an arbitration convention.

In the doctrine it was assessed that an arbitration, in order to be qualified

as "permanent arbitration institution" must meet the following requirements:

have in its object of activity the provision or also the provision of "arbitration

services", we complete, private; have a pre-established functional structure, with

a continuous or virtually continuous, with independent management and staff, as

well as an independent material base enough to provide private arbitration

services; have in independent organisation and operation regulation, as well as

own arbitration rules.

In relation to us, we define the "institutionalized arbitration" as the "form

of arbitration jurisdiction with permanent and non-profit activity, which operate

attached to a Romanian public or private law legal person or as independent legal

person based on an independent regulation, applicable to all litigations submitted

to it to be solved ".

2.2.3. Choosing the institutionalized private arbitration

Art. 617 Civil Procedure Code, under the marginal name "choice of the

institutionalized arbitration ", provides that the parties, by arbitration convention,

can submit their litigations to a certain arbitration court belonging to

institutionalized arbitration [paragraph (1)]. In case of contradiction between the

arbitration convention and the regulation of the institutionalized arbitration it

refers to, the arbitration convention shall prevail [paragraph (2)].

For the choice of the institutionalized arbitration we are interested not only

in "the agreement of the litigants" but also "the agreement between them and the

arbitration institution ". Considering the "preparatory nature" of the litigant's

convention, the arbitration institution cannot accept the organization of the

arbitration in absence of their agreement. In case the arbitration institution is

notified directly by the litigants for the organization of the arbitration, it has the

obligation to assess, as applicable, if their approval exists or not.

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The agreement of the parties for assigning the arbitration institution has as

effect "the contractualization" of its regulation. As a consequence, the failure to

comply with the rules in the regulation of the arbitration institution can bring the

contractual civil liability of the party concerned. In relation to this, the French

doctrine expressed itself in a case.

The litigants are not compelled to refer to an arbitration institution,

eventually to one in whose territorial jurisdiction the respondent party has its

domicile, residence or head office. Indeed, in case of the arbitration organized by

the parties, art. 569 Civil Procedure Code decides unequivocally that "the parties

establish the place of arbitration". Instead, in the case of institutionalized

arbitration, art. 617 paragraph (1) Civil Procedure Code provides that "the parties

can agree for the arbitration to be organized by a permanent institution", without

establishing any criteria in relation to the choice of that institution.

In principle, there is the problem of the legal remedy in case the litigants

do not get to an agreement in relation to the "assignment of the permanent

arbitration institution". In this case, the only legal solution is for the interested

party to refer to the competent court of law to solve the litigation. A solution

which orders the party, even by legal decision, to refer to certain permanent

arbitration institutions seriously and obviously disregards the "voluntary nature"

of the arbitration.

SECTION 2.3.

REPRESENTATION OF THE LITIGANTS IN FRONT OF THE

ARBITRATION COURT

In general, in case of litigations submitted to arbitration, the parties

exercise their procedural rights directly or through a defender or legal counsellor.

Also they can be assisted by other specialists.

Practically, art. 546 Civil Procedure Code, under the marginal name

"representation of the parties", establishes the following rules: in arbitral

litigations, the parties can make requests and can perform their procedural rights

personally or through representative. They can be assisted by other specialists.

SECTION 2.4.

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THE INTERVENTION OF THE COURT OF LAW IN THE ARBITRATION

PROCEDURE

Art. 547 Civil Procedure Code, under the marginal name "intervention of

the court of law", establishes the following rules: in order to remove the

obstacles which might arise in the organization and performance of the

arbitration, as well as to perform other responsibilities which belong to the court

of law in the arbitration, the interested party can notify the court in whose

jurisdiction the arbitration takes place; the court shall solve the case in the panel

provided by law for the court of first instance; the court shall solve these

emergency requests and mainly through the procedure of presidential ordinance,

the decision not being submitted to any remedy at law.

In the old regulation, art. 342 of the Romanian Civil Procedure Code of

1865 provided that, in order to remove the obstacles which might arise in the

organization and performance of the arbitration, the interested party can notify

the court of law, which in absence of the arbitration convention, would have

been competent to judge the litigation on the substance, in first instance.

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CHAPTER III

THE ARBITRATION CONVENTION

SECTION 3.1.

PRELIMINARY NOTES

Art. 544 paragraph (1) Civil Procedure Code establishes that the

arbitration is organized and performed according to the "arbitration convention",

as well as the elements of the arbitration convention. The arbitration convention

can be concluded either in the form of an "arbitration clause", registered in the

main agreement or established by a separate convention the agreement refers to,

or under the form of "compromise".

SECTION 3.2.

the arbitration clause

3.2.1. General information.

Art. 550 Civil Procedure Code, under the marginal name " arbitration

clause", establishes the main rules applicable to it. So, through the arbitration

clause the parties agree that the litigations which shall arise from the agreement

which stipulates it or in relation to it are solved by arbitration, showing, under

the sanction of nullity, the method for appointing the arbitrators. In the case of

institutionalized arbitration it is enough to refer to the institution of the

procedural laws of the institution which organizes the arbitration; the validity of

the arbitration clause is independent of the validity of the agreement in which

was registered; in case of doubt, the arbitration clause is interpreted in the

meaning that it is applied to all misunderstandings deriving from the agreement

or from the legal report it refers to.

Through the arbitration clause, the parties establish that the possible

disputes resulting from the agreement concluded between them or in relation to

it, to be solved through private arbitration. Practically, "the arbitration clause" is

shown as a "compromise under suspensive condition" to interfere in a litigation

and assign the arbitrators of the arbitration court'.

The main feature of the "arbitration clause" is its "anteriority" in relation

to the moment "of appearance of the litigation" between the contracting parties.

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In relation to its legal nature, "the arbitration clause" is a "reciprocal

clause" meaning that when a litigation appears from the contract or in relation to

the contract where it is entered, it brings forth mutual and interdependent rights

and obligations for both parties.

3.2.2. The validity conditions of the arbitration clause

In the meaning of the arbitration clause, formulated before a litigation

appears, its object is stipulated in the generic terms, meaning is formed of the

"litigations which shall arise from the agreement in which it is stipulated or in

relation to it ".

The object of the arbitration clause is materialized after the litigation

appears and the arbitration court is notified by the interested party.

In terms of validity conditions of the arbitration clause, the "written form"

and the "specification of the means for assigning the arbitrators" are analyzed ".

SECTION 3.3.

THE COMPROMISE


By compromise, the parties agree that a litigation interfered between them

shall be solved by arbitration showing, under sanction of nullity, the object of the

litigation and the names of the arbitrators or their appointment method in case of

ad-hoc arbitration. In the case of institutionalized arbitration, if the parties have

not chosen the arbitrators or their appointment method, this shall be performed

according to the procedural rules of the related arbitration institution. The

compromise can be concluded only if the litigation interfered between the parties

is already on the dockets of another court.

"The compromise", being a form of the "arbitration convention has some

similarities but also differences in relation to "the arbitration clause".

The compromise, being in itself an agreement, must meet all the

requirements of art. 1166-1323 Civil Code for the contract, in general. Beside

these requirements, art. 551 Civil Procedure Code requires also the cumulative

compliance with two special requirements: indicating the subject of the

litigation; indicating the name of the arbitrators or their assignment methods.

The specialty literature evokes certain definitions that the jurisprudence or

the doctrine in the European countries give to compromise and which have been,

17

in a certain way, inspiration sources for the regulatory content of art. 551

Romanian Civil Procedure Code. So, in the French doctrine, compromise is

considered a judicial convention sui generis. Alternatively, in the Swiss

jurisprudence, compromise is seen as a "procedural agreement" submitted to

public law.

3.3.2. Indicating the object of the litigation

In the absence of a legal specification and even of doctrinaire

preoccupations to establish its significance, fundamentally we have to establish

the meaning of the expression "object of the litigation ".

In the doctrine it was established that the "object of a litigation" which

shall be solved by arbitration is not different, in relation to the determination

terms, by the object of a litigation referred to a court of law.

On the other hand, as already specified, the arbitration is not allowed in

case of litigations regarding the civil status, the capacity of people, the hereditary

dispute, the family relations as well as the rights in relation to which the parties

cannot decide. Also, the litigation regarding "the rights in relation to which the

parties cannot decide" cannot be submitted to arbitration ".

3.3.3. Indicating the arbitrators

In the case of ad-hoc arbitration the arbitrators can be assigned either by

indicating their "name", either by " appointment method ". Instead, in the case of

institutionalized arbitration, if the parties have not chosen the arbitrators and

have not established their appointment method, this shall be performed according

to the procedural rights of that arbitration institution. The failure to mention the

names of the arbitrators or their appointment method brings the nullity of the

compromise.

In relation to the possibility to assign as an arbitrator a "collective person"

(legal persons) things are separated, as art. 555 Civil Procedure Code

categorically provides that an arbitrator can be any natural person which has full

capacity to exercise.

SECTION 3.4.

COMMON REQUIREMENTS FOR THE VALIDITY OF THE

ARBITRATION CONVENTION

3.4.1. General information

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"The arbitration convention", independently of the form it gas, "arbitration

clause" or "compromise" must comply with certain substance and form

requirements. Also, in the same context, it is necessary to analyze aspects related

to "the arbitration convention" in general, as well as the nullity of the arbitration

convention, the caducity of the arbitration and the evidence of the arbitration

convention. For reasons related strictly to systematization of the paper, we

analyze in the same context also the compromise during the judgement of the

litigation by a court of the law.

3.4.2. Background conditions of the arbitration convention

Essentially, "the arbitration convention" is a "contract". As a result, it is

absolutely natural that in the context of a paper dedicated to "private arbitration"

to analyse, even if only synthetically, "the essential conditions for the validity of

an agreement, meaning: the ability to contract; the valid consent of the parties

which commit; a determining, possibly licit object; a valid cause of the

obligations.

3.4.3. The nullity of the arbitration convention

The nullity of the arbitration convention can appear from various reasons.

According to the Civil procedure code, the following are reasons for the nullity

of the arbitration convention: the failure to comply with the written form and to

indicate the method for the appointment of the arbitrators. Also, the disturbance

of peace and good morals brings the nullity of the arbitration convention.

Obviously, these are "special" and "explicit reasons" of nullity for the arbitration

convention.

Besides these reasons, there are other "general" ones stipulated by the

Civil Law for any legal act, such as failure to comply with the legal provisions

regarding the exercise ability or the vitiation of the consent of one of the parties.

3.4.4. The caducity of the arbitration

3.4.5. The proof of the arbitration convention

Under the nullity sanction, the arbitration convention is concluded in

writing, and in relation to a litigation related to the transfer of the property right

and/or establishing another real right on a real estate, it is concluded in an

authentic notarial form, under the sanction of absolute nullity. Practically, the

proof of the arbitration convention is performed with the document concluded

for this. Except the case stipulated by art. 548 paragraph (2) Civil Procedure

Code, in which the form of the "authentic notarial document" is imposed, "any

19

type of document" is admissible. Consequently also the legal provisions

regarding the beginning of a written proof are applicable in the matter.

3.4.6. The compromise during the lawsuit of a litigation

SECTION 3.5.

THE EFFECTS OF THE ARBITRATION CONVENTION

3.5.1. General information regarding the effects of the civil legal action

In this context we analyze: the principal of the binding force of the legal

act; the principle of unilateral irrevocability of the bilateral legal act; the

principle of relativity of the civil legal act; exceptions from the principle of

relativity of the effects of the legal act.

3.5.2. Particular aspects regarding the effects of the arbitration

convention towards the parties

In relation to the arbitration convention, the law does not establish special

rules in relation to its effects, and for these reasons, the rules of common law are

totally applicable. Anyway, the conclusion of the arbitration convention excludes

the competence of the courts of law for the litigation subject to it.

Also, the arbitration convention is "unseverable". As a result, in the

absence of a contrary agreement, its annulment or expiry is related to the whole

litigation, and not only a part of it.

SECTION 3.6.

LITIGATIONS WHICH CAN BE ARBITRATED


The litigants do not have the discretionary option, meaning they have the

possibility to submit any kind of litigation to arbitration, independently of its

nature. In reality, and in this field, the freedom of will is limited by "public

order" and "good morals".

3.6.2. Litigations which cannot be submitted to arbitration

Together with the litigations whose settlement by arbitration disregards the

"public order" and "good morals", also the litigations regarding "civil status",

20

"the capacity of people", "the hereditary dispute", "the family relations" as well

as "the rights in relation to which the parties cannot decide" are excluded.

Also the doctrine analyzes other categories of litigations, such as the

followings: litigations for which there is a special legal procedure; criminal

litigations; litigations subject to administrative law; litigations regarding the

administrative-contravention liability; fiscal litigations; litigations regarding

copyright and related rights; litigations related to invention patents.

21

CHAPTER IV

THE ARBITRATION COURT

SECTION 4.1.

PRELIMINARY NOTES

The arbitration can be entrusted to one or more people, invested by the

parties to judge the litigation and issue a final and mandatory decision for them.

The sole arbitrator or, according to the case, the appointed arbitrators are the

arbitration court.

According to the present regulation, there is no longer the issue of a

certain priority between the "unipersonal arbitration" in relation to the "collegiate

arbitration" or otherwise.

The entrusting of arbitration is performed through the "the arbitration

convention".

The litigants are the ones which, on one hand, decide if the litigation shall

be submitted to arbitration and, on the other hand, if the arbitration shall be

performed by one or more arbitrators. These rules are incidental also in the case

of "institutionalized arbitration ".

Independently of the method used to appoint the arbitrators, they must

accept in writing the task and communicate the acceptance to the parties.

In the doctrine, in principle, there was the issue of "the nature of the

arbitrator position" concluding that, even if appointed by the parties or by one of

them, he cannot be considered a "representative" of the parties.

SECTION 4.2.

THE PERSONS WHICH CAN BE AN ARBITRATOR

4.2.1. Requirements for a person to be an arbitrator

Any natural person with a full exercise capacity can be an arbitrator. The

only conditions are for the person to be a natural person and have full capacity of

exercise. Still, there are laws which forbid certain persons with various "public

positions" or to occupy other positions or perform a series of public and private

activities, such as the one of arbitrator.

22

By their convention, the litigants can decide to exclude certain persons or

categories of persons from being an arbitrator for solving the litigation between

them. So, the following cannot be an arbitrator: the person under tutelage or

guardianship; the person convicted to the accessory or complementary criminal

penalty of having a position, performing a profession or a job or the activity used

for performing the offence; "the person declared bankrupt".

4.2.2. The number of arbitrators

The parties establish if the litigation is judged only by the sole arbitrator or

by various arbitrators, which always have to be an uneven number. If the parties

had not established the number of arbitrators, the litigation is judged by 3

arbitrators, one appointed by each of the parties and the third, the referee,

assigned by the two arbitrators. Presently, the referee has the same "power" as

the other two arbitrators, "its role" being to achieve "the majority" in adopting

the arbitral decision.

4.2.3. The appointment of arbitrators

In principle, the arbitrators are appointed, revoked or replaced according to

the arbitration convention. In case the sole arbitrators or, according the case, the

arbitrators have not been appointed by the arbitration convention and the

appointment method has not been provided, the party which wants to submit to

arbitration shall communicate to the other party, in writing, to perform their

appointment. The party to which the communication was sent must sent, in turn,

the answer to the appointment proposal of the sole arbitrator or, according to the

case, the name, first name, residence and, as much as possible, the personal and

professional information of the arbitrator assigned by it.

4.2.4. Particularities regarding the arbitrators in the case of

institutionalized arbitration

In the case of "institutionalized arbitration", one can prepare optional lists

of people which can be arbitrators or referees, but which do not have a

mandatory nature. If the parties do not reach an agreement related to the sole

arbitrator or when a party does not appoint the arbitrator or when the 2

arbitrators do not reach an agreement regarding the referee, the appointment

authority is the president of institutionalized arbitration. So, also in case of

institutionalized arbitration, the principle is the appointment of the arbitrators by

the litigants, through arbitration convention.

23

SECTION 4.3.

THE ROLE OF THE ARBITRATORS

4.3.1. The legal nature of the arbitrator's role

The arbitrators have a "jurisdictional position" of "conventional nature".

4.3.2. Accepting the arbitrator task

The position of arbitrator is optional. Consequently, it seems absolutely

natural for the arbitrator to have the possibility to accept or, on the contrary,

refuse this task.

4.3.3. The power of the arbitrators

In principle, "the powers" of arbitrators are the ones of the judges. Still,

given the conventional nature of the arbitration, the powers of the arbitrator

having also some important derogations.

4.3.4. Termination of the arbitrator's role

The identification of the reasons which determine the termination of the

arbitrator position is important because, usually, from this date, the arbitration

convention stops being effective. Practically, after this date, in order to apply for

arbitration, the litigants must conclude a new arbitration convention.

The termination of the arbitration task takes place by: recusation,

reversion, abstention, receding, death, as well as in any case when the arbitrator

is prevented from complying with his task.

In the specialty literature there have been identified also other reasons

which determine the termination of the arbitrator's task, namely: the

communication of the arbitral decision by the parties; the court of law considered

the litigation for judgement; the arbitrator did not perform his task as he gave up

the appointment of arbitrator, either by failure to attend the judgement of the

litigation, or by failure to issue the arbitral decision in the term provided by law

or by the arbitration convention; the death of the arbitrator; the prevention of the

arbitrator; the abstention of the arbitration; the object of the litigation

disappeared.

4.3.5. Liability of the arbitrators

The arbitrators are liable, according to the law, for the prejudice produced

if: after the acceptance, they give up their task; without a justified reason they do

not attend the judgement of the litigation, or they do not issue the decision in the

term established by the arbitration convention or by the law; they do not comply

24

with the confidential nature of arbitration, publishing or revealing data which

they acknowledge as arbitrators, without the authorization of the parties; in bad

faith or gross negligence, they do not comply with any other debts they have.

In relation to the "legal nature of the arbitrators' liability", we are tempted

to consider we are talking about "civil liability ".

SECTION 4.4.

THE COMPETENCE OF THE ARBITRATION COURT


The main effect of the arbitration convention is to submit the litigations or

litigation between the parties to the arbitration court for settlement and, in

correlation, to avoid the competence of the courts of law.

The arbitration court has a "general competence" and a "determined

competence" (special) in relation to (a) certain litigation(s), virtual or real,

evoked or indicated in the arbitration convention.

4.4.2. The content and limits of the arbitration competence

The competence assigned to the arbitration court through the arbitration

clause is similar to the material competence assigned to the courts of law by art.

94 and following Civil Procedure Code

The assessment "of the competence limits for the arbitration court" can be

achieved, in a "wide sense" (lato sensu) and in another "limited" on (stricto

sensu). So, it is possible for the court of law or the arbitration court, notified by a

preliminary request, to assess in a wide sense the intention of the parties to

avoid, generally, "any litigation" from the competence of the court of law.

Instead, the assessment stricto sensu of the competence limits for the arbitration

court is necessary, most of the times, to avoid the dissolution of the arbitral

decision by reasons of ultra petita or plus petita.

If the parties have not provided otherwise, the arbitration court must issue

the decision within 6 months from the date it was established, under sanction of

arbitration caducity. Currently, we know three methods for extending the term of

the arbitration: by agreement of the parties, through motivated decision of the

arbitration court and of the court of law.

25

The termination of the competence o the arbitration court can interfere

before the completion of the arbitration term and also for other reasons: in case

of recusation, reversion, abstention, receding, death, as well as in any case when

the arbitrator is prevented from complying with his task.

SECTION 4.5.

THE COMPETENCE CONFLICTS IN TERMS OF ARBITRATION


The possible "competence conflicts" can only appear between the state

jurisdiction and the arbitration jurisdiction. The separation of the competence of

the arbitration court from the one of the courts of law is assumed from the

principle according to which, the conclusion of the arbitration convention

excludes the competence of the courts of law for the litigation subject to it.

4.5.2. Excluding the competence of the courts of law.

The conclusion of the arbitration convention excludes the competence of

the courts of law for the litigation subject to it.

The competence of the arbitration court is separated, in its legal and

general framework, by the agreement of the litigants and, correlatively, this

competence has as effect the avoidance of the litigations subject to it by

competence of the courts of law.

In principle, given the conventional nature of the arbitration, the

arbitration competence cannot be extended to people which are not parties in the

arbitration convention.

The possibility of the parties to give up the arbitration competence is the

natural consequence of their freedom of will in conventional matters. The

renunciation of the party or parties to the arbitration competence can be explicit

or silent.

26

The lack of competence of the court of law because there is an arbitration

convention which can be invoked by the interested party by way of a procedural

exception for the litigation on its dockets, which must be invoked in limine litis,

meaning until the conclusion of the debates and hearing the merits.

The competence conflict between the arbitration court and one court of

law is solved by the court of law superior to the one in conflict.

4.5.3. Checking the arbitration competence

At the first hearing with a fully compliant procedure the arbitration court

has the obligation to check its own competence of solving the litigation. If the

arbitration court decides it is competent, it registers this in a court resolution,

which can dissolve only the annulment action introduced against the arbitral

decision. If, on the contrary, the arbitration court decides it is not competent to

solve the litigation notified, it declines its competence through a decision against

which no appeal of annulment can be made.

The check of the arbitration court's competence can be performed also as a

result of the non-competence exception made by the parties or only by one of

them, invoked when the merits are submitted.

The arbitration court decides in relation to its competence by a resolution,

which can be dissolved only by an annulment action introduced against the

arbitral decision.

The court of law, notified with an action in relation to which an arbitration

convention was concluded, shall check its own competence and shall declare

itself incompetent only if the parties or one of them requests this, invoking the

arbitration convention. In this case, the court shall give up its competence in

favour of the organization or institution where the institutionalized arbitration

operates which, according to the grounds of the decision to decline, shall take the

necessary measures for establishing the arbitration court. In case of ad-hoc

arbitration, the court shall reject the demand as not being the competence of the

court of law.

27

CHAPTER V

ARBITRATION JUDGEMENT

SECTION 5.1.

COMMON PROCEDURE RULES


The arbitration judgement is performed according to the procedural rules

established in the arbitration convention or by the arbitrators. These rules are

amended, if applicable, by the provisions of the Civil Procedure Code

established for private arbitration.

In the arbitration procedure there is the incumbency of proper compliance

with the following main principles of the civil trial: no judge, in the case

arbitrator, can refuse to issue a decision invoking the reason that the law does not

have provisions, is unclear or incomplete; the performance of the procedural

rights in good faith, according to the purpose for which they have been

recognized by the law and without affecting the procedural rights of another

party; guaranteeing the right to defence; audi alteram partem; vocality;

continuity; compliance by the judge (arbitrator) with the main principles of the

civil trial; the attempt to reconciliate the parties; the settlement of the litigation

by the judge (arbitrator) according to the rightfully applicable rules; the

obligation of the judge (arbitrator) to prevent any mistake in finding out the truth

in the case, in order to issue a solid and legal decision; establishing the legal

qualification of the offences by the judge; the interdiction for the judge

(arbitrator) to change the name or legal grounds in case the parties, in virtue of a

explicit agreement regarding rights they can have, according to the law, have

established the legal qualification and the rightful reasons for which they decided

to limit the debates, if in this manner they do not affect their legitimate rights or

interests; the obligation of the judge (arbitrator) to issue an opinion about

everything requested to him, but without exceeding the limits of the

appointment, beside the cases in which the law decides otherwise; the obligation

of the people present at the proceedings (arbitration proceedings) to show the

due respect to the court (arbitration court), without affecting the performance of

the proceedings (arbitration proceedings).

5.1.2. Procedural rules applicable to institutionalized arbitration

28

By exception, in case the parties submit to institutionalized arbitration, if

not agreed otherwise by the parties, the procedural rules in force for

institutionalized arbitration at the moment of its notification shall be applied.

5.1.3. Notification of the arbitration court

The procedural act with which the arbitration court is invested with a

claim is the "arbitration request". The arbitration request is equivalent to "the

suing request ".

Independently if mentioned in an "unilateral act" or in a "bilateral act", the

arbitration request must have the "written form" and must include the data

mentioned by art. 571 Civil Procedure Code

By exception from common law, in the arbitration procedure the plaintiff

has the obligation to send to the respondent, as well as to every arbitrator, a copy

of the arbitration request and of the attached documents.

In the arbitration procedure, within 30 days from receiving the copy of the

arbitration request, the respondent has the obligation to submit a statement of

defence.

In relation to the counterclaim in arbitration matters, art. 574 Civil

Procedure Code establishes the following procedural rules: if the respondent has

claims against the plaintiff, deriving from the same legal relation, he can make a

counterclaim; the counterclaims shall be introduced in the term for filing the

statement of defence or the latest until the first hearing where the respondent has

been legally summoned, and must comply with the same conditions as the main

request.

In the common law, as well as in matters of arbitration, the submission of

the counterclaim is "optional".

In relation to "common law", in the arbitration procedure, the counterclaim

has significant peculiarities.

SECTION 5.2.

ACTUAL ARBITRATION JUDGEMENT

5.2.1. Communication of the procedural actions

The communication between parties or to the parties of the documents of

the litigations, of the subpoena, of the arbitral decision and of the court

resolutions is performed by certified mail with declared content and

29

acknowledgment receipt. The notification of the parties in relation to other

measures taken by the arbitration court can be also performed by telefax,

electronic mail or other means which ensure the delivery of the document and its

acknowledgment receipt. The documents can also be handed personally to the

party, under signature. The communication proofs are submitted to the file.

5.2.2. Checking the file

Before the expiry of the term for submitting the statement of defence, the

arbitration court checks the stage of preparation of the litigation for debate and,

if he considers it necessary, he shall decide the proper measures to complete the

file.

The checks of the court must regard especially the compliance of the

plaintiff with the validity requirements for the arbitration request and also, if the

respondent has prepared a statement of defence and/or counterclaim, if these also

comply with the legal requirements. Also, the arbitration court has the obligation

to check the documents attached to the arbitration request, to the statement of

defence and to the counterclaim, as applicable. Obviously, in case of establishing

certain irregularities, the arbitration court shall decide the necessary measures to

remedy them.

After this check and, if applicable, after completing the file, the arbitration

court establishes the term for debate of the litigation, and decides to summon the

parties.

5.2.3. The summoning term

Between the date of receipt of the subpoena and the debate term there

must an interval of at least 15 days. This term is established in the interest of the

respondent and has the role to offer him the possibility to prepare the defence.

5.2.4. Checking the competence of the arbitration court

At the first hearing with a fully compliant procedure, the arbitration court

checks its own competence to solve the litigation. If the arbitration court decides

it is competent, it registers this in a court resolution, which can be dissolved only

by the avoidance action introduced against the arbitral decision. In exchange, if

the arbitration court decides it is not competent to solve the litigation notified,

and declines its competence by a resolution, against which it cannot make an

avoidance action.

5.2.5. The participation of the parties to the arbitration procedure

30

Unlike "third parties", in case their participation to the arbitration

procedure has established an explicit regulation, in the case of "litigants" we do

not find any text which explicitly provides this. Moreover, the participation of

the parties to the arbitration procedure can be assumed, consequently, by the

various texts of the Civil Procedure Code.

The failure of the legally summoned parties to appear does not prevent the

debate of the litigation, except for the case in which the absent party shall

request, within 3 days before the date for which the debate was established, its

postponement for thorough reasons, notifying the other party, as well as the

arbitrators, in the same term. The assessment of the reliability of the reasons of

absence of one of the parties, as well as of the reasons for which the absence

justify the postponement of the debate is the exclusive competence of the

arbitration court, its decision not being submitted to any remedy at law.

By exception, the failure of the party to appear in the term for which it was

summoned can determine "the postponement of the debate", if the following

conditions are cumulatively met: the absent party has asked for the

postponement; the postponement request was introduced in the arbitration court

at least 3 days before the compliance of the term established for the debate of the

litigation; the postponement was requested for solid reasons; the absent party has

notified the other party and the arbitrators about its postponement request at least

3 days before the date initially established for the debate of the litigation.

In case "both parties are absent from the arbitration procedure on the term

on which they have been legally summoned", although they have been legally

summoned, the arbitration court shall solve the litigation, beside the case in

which the postponement has been requested for solid reasons.

The arbitration court can decide to judge the litigation in absence of the

parties, if any of the parties has requested in writing for the litigation to be

settled in its absence, based on the evidence on file.

5.2.6. The participation of third parties to the arbitration procedure

Third parties can participate to the arbitration procedure according to art.

61-77 Civil Procedure Code, but only with their approval and with the approval

of all the parties. Still, the accessory intervention is admissible also without the

observance of these conditions.

5.2.7. Insurance measures in the arbitration procedure

31

During the arbitration, any of the parties can request to the arbitration

court to agree with insurance measures and temporary measures in relation to the

subject of the litigation and establish certain de facto circumstances.

5.2.8. The evidence and their submission in the arbitration procedure

As in any other civil trial, and in terms of arbitration, the evidence is

absolutely necessary for the court of law to know the real de facto state between

the parties in litigation.

From the purpose of the arbitration one can assume that the de facto

situation which must be proved is related to de facto circumstances such as: the

existence of the agreement which generated the litigation, the quality of party in

the agreement of the people which appealed to arbitration, the existence of the

goods subject to the litigation submitted to arbitration etc.

Given the plurality and complexity of the problem usually arose by the

civil litigation in general and by the private ones, especially, in the procedures

which have as subject solving such litigations it is possible to use all the

evidence means approved by the law.

In a phrasing which has already become a classic, art. 591 Civil Procedure

Code provides that the assessment of the evidence is performed by the arbitrators

according to their own opinion.

The evidence which have not been requested through the arbitration

request or through the statement of defence can no longer be invoked during the

arbitration, with some exceptions (the need for the evidence results from the

amendment of the request; the need to present the evidence results from the

judicial investigation and the party could not have foreseen it; the party

demonstrates to the court that, from solid reasons, it could not propose in time

the evidence requested; the submission of the evidence does not lead to

postponing the settlement of the litigation; there is the explicit approval of all

parties).

The arbitration court shall approve the evidence submitted only if it

decides they are "useful", "relevant" and "conclusive". In the doctrine it was

correctly signalled that the text analysed does not also consider the ""credible"

nature of the evidence submitted by the parties.

In principle, the submission of the evidence is performed in the session of

the arbitration court. This can decide for the submission of the evidence to be

32

performed in front of the referee or, with the approval of the parties, in front of

an arbitrator from the arbitration court.

In order to solve the litigation, the arbitration court can require the parties

written explanations in relation to the object of the request and the facts of the

litigation and can decide the submission of any evidence provided by the law.

5.2.9. The language in which the arbitration procedure

The debate of the litigation in front of the arbitration court is performed in

the language established by the arbitration convention or, if nothing has been

provided in relation to this or no subsequent agreement was concluded, in the

language of the contract in relation to which the litigation appeared or, if the

parties do not agree, in an international language established by the arbitration

court. If a party does not know the language in which the debate is performed

upon the party's request and expense, the arbitration court shall ensure the

services of a translator. The parties can participate at the debates with their

translator.

The specialty literature has criticized the regulatory solution regarding the

"language of the arbitration".

5.2.10. The place of performance of the arbitration procedure

The parties establish the place of arbitration. In absence of such a

provision, the place of arbitration is established by the arbitration court.

SECTION 5.3.

INTERRUPTION AND SUSPENSION OF THE ARBITRATION

PROCEDURE


Some of the possible incidents which shall be solved during the arbitration

are prior to the opening of the arbitration procedure, having as subject litigious

matters which have appeared between the parties before their appearance in front

of the arbitration court. So, any exception regarding the existence and validity of

the arbitration convention, the formation of the arbitration court, the limits of the

arbitrators' tasks and the performance of the procedure until the first hearing

when the party has been legally summoned must be made within this term, if a

shorter term has not been established.

5.3.2. Cases of interruption and suspension of the arbitration

33

The specialty literature analyzes the following cases of interruption or

suspension of the arbitration procedure: when, during the arbitration, in relation

to an arbitrator interferes the recall, abstention, receding, death as well as any

other case in which the arbitrator is prevented from complying with its task and

if the substitute, in turn, is prevented to comply with his task; the arbitration term

is suspended during the judgement of a recusation request and, obviously, of an

abstention request which is actually a self-recusation; the death of one of the

parties, if the action is transferable to its successors, determines the suspension

of the arbitration procedure until the date they enter the case; the settlement of a

harmful issue also determines the suspension of the arbitration procedure,

provided the solution given in relation to it can influence the decision of the

arbitration court; the suspension of the arbitration procedure during the period of

settlement of the avoidance action for the reason provided by art. 594 paragraph

(1) lit. a) merged with paragraph (5) Civil Procedure Code

The interruption or suspension of the arbitration procedure is reflected

accordingly also on the term of the arbitration, independently if it is legal or

established conventionally or even by the arbitration court.

The procedural acts performed during the "interruption" of the arbitration

procedure are considered void, because they are the product of a "pseudo

arbitration court". Instead, the acts performed during the "suspension" of the

arbitration procedure maintain their validity, provided the party in favour of

which they have been performed "confirms" them explicitly or silently.

SECTION 5.4.

SOLVING THE LITIGATION BASED ON THE APPLICABLE LEGAL

REGULATIONS OR IN EQUITY


The arbitration court solves the litigation according to the main agreement

and to the applicable legal regulations. Still, based on the explicit agreement of

the parties, the arbitration court can solved the litigation in equity.

5.4.2. The assumption regarding the settlement of the litigation according

to the applicable legal regulations

The assumption regarding the settlement of the litigation according to the

applicable legal regulations actually expresses the common rule. Finally, the

arbitration court has the obligation to settle the litigation it has been appointed to

34

solve according to the legal regulations, meaning neither by opportunity or in

equity. Otherwise the arbitration, as well as state justice, would degenerate into

the arbitrary, which is inadmissible.

Instead, "the arbitration in equity" remains the exception and, as all

exceptions, must result from the explicit will of the parties and, anyway, must be

of strict interpretation and application.

5.4.3. The power of the arbitrators which solve the litigation according to

the applicable legal regulations

The arbitrator authorized by the parties to solve a litigation, in absence of

an explicit convention regarding its settlement in equity, shall apply the legal

regulations in force. In fact, the will of the party is legally assumed in order for

the arbitration court to proceed in this manner

Finally, in this case, the arbitrator is in the same situation as the judge. So

both must comply, at the same time, with the imperative and with the dispositive

provisions. Also, both must consider the provisions of the agreement where that

litigation originated.

Still, between the situation of the arbitrator and the one of the judge there

is, on one hand, a limitation of his power in relation to the rightful regulation

and, on the other hand, an expansion of his power.

5.4.4. The power of the arbitrators which solve the litigation in equity

The settlement of the litigation in equity can be related only to its

substance.

Still, in relation to the settlement of the substance as well as in relation to

the procedure, as such, the arbitrator do not have unlimited liberty, under the

equity principle. So, as specified before, also in this case, the arbitrators have the

obligation to comply with the "public order" and "the imperative provisions of

the law".

35

CHAPTER VI

THE ARBITRAL DECISION

SECTION 6.1.

THE LEGAL NATURE AND DRAFTING OF THE ARBITRAL DECISION

6.1.1. The legal nature of the arbitral decision

The arbitral decision "is the jurisdictional action of the arbitration court

through which, in the limits of the arbitration convention, of public order and

good morals, they solve the litigation submitted by the parties ".

On the other hand, in the doctrine, in relation to the legal nature of the

arbitral decision, at least four theses have been outlined, and specifically: the

arbitral decision, as final product of a compromise, has a conventional nature or

is a sui generis act with a contractual nature; the arbitral decision is a jurisdiction

act with private origin; the arbitral decision has a jurisdictional nature, but only

after it is consolidated by exequatur; the arbitral decision has a jurisdictional

nature.

It seems that the final thesis has become the dominant one.

6.1.2. The preparation of the arbitral decision

In all cases, the issuing must be preceded by the secret deliberation of the

arbitrators, in the manner established by the arbitration convention or, in its

absence, by the arbitration court. The actual deliberation method is achieved

according to the agreement of the litigants through the arbitration convention or,

in its absence, as the arbitration court shall decide. Independently of the variant

chosen, all arbitrators must attend the deliberation. Also, in case the court is

composed of various arbitrators the decision is taken by the majority of votes.

"The issue of the arbitral decision" is an operation different from the

"deliberation".

As a result of the deliberation, the arbitration court has to prepare a

"minute" which shall include, briefly, the content of the decisions's enactment

terms and in which the minority decision shall be shown, if applicable.

SECTION 6.2.

THE FORM, CONTENT AND OBJECT OF THE ARBITRAL DECISION

36

6.2.1. The form of the arbitral decision

In relation to the "form of the arbitral decision, this is drawn up "in

writing". The requirement of the written form is necessary to express more

specifically what has been found and decided by the arbitration curt, as well as to

enforce it as faithfully as possible. Also the written form is claimed also by the

possibility to annul it by promoting the avoidance action.

In relation to the "legal nature", the document in which the arbitral

decision is registered meets all the requirements to be considered an "authentic

document ".

6.2.2. The content of the arbitral decision

The arbitral decision must include: the names of the members of the

arbitration court, the place and date of issue of the decision; the names and first

names of the parties, their domicile or residence or, as applicable, the name and

head office, name and first name of the parties' representatives, as well as of

other people which have attended the debate of the litigation; the arbitration

convention according to which the arbitration was performed; the object of the

litigation and the abbreviated claims of the parties; the de facto and de jure

reasons of the decision and in case of the arbitration in equity, the reasons which

set out the solution in this respect; the enactment terms; the separate and rival

opinion, if applicable.

6.2.3. Clearing, completing and correcting the arbitral decision

In case explanations are needed in relation to the meaning, extent or

application of the decision's enactment terms or it includes contrary provisions,

any of the parties can request the arbitration court to clear the enactment terms or

remove the contrary provisions. If, by the decision issued, the arbitration court

neglected issuing an opinion in relation to a head of claim, on a related or

incidental request, any of the parties can request its amendment. The explanation

or amendment request is presented within 10 days from the date or receipt of the

decision and is solved by the arbitration court, with the summoning of the

parties. The material errors in the text of the arbitral decision or other obvious

errors which do not change the substance of the solution, as well as the

calculation errors can be corrected, by resolution, upon request of any of the

parties or ex officio. The explanation or amendment decision or the correction

resolution is issued immediately and is part of the arbitral decision.

6.2.4. Communication of the arbitral decision

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The arbitral decision is communicated to the parties within a month from

its date of issue. Upon request of any of the parties, the arbitration court issues a

proof regarding the communication of the decision.

SECTION 6.3.

EFFECTS OF THE ARBITRAL DECISION

6.3.1. General information regarding the effects of legal decisions

Given the numerous "common elements", we have recalled the effects of

legal decisions, and specifically: the recall of the court; the res judicata; the

executory power; the probative force; the incumbency and opposability of the

decision.

6.3.2. Particular aspects of the effects of arbitral decision

As I have already specified, in principle, the arbitral decision has the same

effects as the legal decision. Nevertheless, the arbitration decision also has

certain peculiarities. So, the most important one is that the arbitration decision is

not the consequence of a public service, such as "justice", but of the activity of

an arbitration court, established by will of the litigants and which often judges

according to the regulations pre-established by the parties or even by itself.

Being an act coming from an authority with private jurisdiction, the arbitral

decision cannot be performed by constrain without the authority of the courts of

law.

SECTION 6.4.

ANNULMENT OF THE ARBITRAL DECISION


The civil procedure code establishes only one remedy at law against the

arbitral decision, respectively "the annulment action". Per a contrario, it is

inadmissible to promote any remedy at law from the common law administrative

court, independently if it is ordinary (appeal) or extraordinary (second appeal,

revision or contestation in annulment).

6.4.2. Legal nature of the trial in the annulment of the arbitral decision

Under the influence of the Civil procedure code, the former Supreme

Court of Justice, issuing its opinion about a second appeal in the interest of the

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law in relation to the nature of the avoidance action, it found that certain courts

of law have considered that the avoidance action of the arbitration decision is a

"main action" and have judged it in the court of first instance, issuing

"sentences". Other courts, settling these actions in first instance, have issued

"decisions". Moreover, some courts, considering that the avoidance action is a

"remedy at law", have judged it as "appeal courts". Finally, there have been

courts which considered that the avoidance action is a "remedy at law" which

must be solved by the "immediately superior court", the one which would have

been normally competent in absence of the arbitration convention. These courts

have solved the avoidance action in the panel provided by law for the judgement

of the "second appeal".

The former Supreme court has rallied to this final solution.

And according to the present Civil procedure code there is the doctrinal

tendency to remove the action for the avoidance of the arbitration appeal

convention and establish "similarities between it and the second appeal ".

Still, even some of the authors in the case have noted that, even if there are

similarities between the reasons to avoid the arbitration convention and the

reasons of second appeal, these are not identical. Also, it is impossible to explain

logically and legally the "second appeal to the second appeal".

Actually, the avoidance action for the arbitral decision is a "main legal

control action". Consequently, any similarity between this action, on one hand,

and the appeal or second appeal, on the other hand, is an useless doctrinal or

jurisprudential step.

6.4.3. Reasons of the avoidance action

The reasons of the avoidance action of the arbitral decision are provided in

an explicit and limiting manner by the Civil procedure code and can be grouped

in the following categories: absence, nullity or inefficiency of the arbitration

convention; the organization and operation of the arbitration court is not

according to the arbitration convention; the legal procedure has not been

performed according to the arbitration regulations; the arbitral decision itself

does not comply with the legal provisions.

6.4.4. Restrictions regarding the admissibility of the nullity suit

One can no longer invoke as reasons for the avoidance of the arbitral

decision the irregularities which have not been claimed or remedied in the

manner provided by art. 604.

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We reaffirm that, according to art. 592 Civil Procedure Code, any

exception regarding the existence and validity of the arbitration convention, the

formation of the arbitration court, the limits of the arbitrator's tasks and the

performance of the procedure until the first hearing to which he party has been

legally summoned must be made, under penalty of preclusion, within this term,

if no shorter term has been established. Also, any requests and documents shall

be submitted within the first hearing to which the parties have been legally

summoned.

6.4.5. The procedure for solving the avoidance action of the arbitral

decision

The avoidance action can be analyzed as a "right of the litigants", which

cannot be given up in advance.

The object of the avoidance action is usually the arbitral decision which

settled "the merits of the litigation". Nevertheless, also other arbitral decision

which, even if they don't solve the merits, are related to other "litigious aspects"

can be subject to this action.

The avoidance action is introduced to the court of appeal within a month

from the date of communication of the arbitral decision.

The competence to judge the avoidance action belongs to the court of

appeal in whose jurisdiction the arbitration took place.

The court of appeal judges the avoidance action in the panel provided by

law for the trial of first instance. The judgement of these requests by a panel

formed by only one judge supports the conclusion that the avoidance action of

the arbitration decision is not a "remedy at law ".

The statement of defence is compulsory.

The court of appeal can suspend the execution of the arbitral decision

against which the avoidance action was introduced.

The court of appeal, solving the avoidance decision of the arbitral

decision, can decide to reject or approve it.

The rejection of the avoidance request of the arbitral decision can be

decided because it is not considered solid, as well as because it is not considered

legal. In case of rejection of the request, the arbitral decision is consolidated and

produces all the effects according to the law.

Instead, in case the avoidance request is approved, the court of appeal

shall annul the arbitration decision and, as applicable, shall either send the case

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to be judged by the competent court to settle it, or shall send the case to be

rejudged by the arbitration court, if at least one of the parties explicitly requires

this.

6.4.6. Execution of the arbitral decision

The arbitral decision is willingly accomplished by the party against which

it was issued, immediately or within the term shown in it.

By exception, the arbitral decision is a writ of execution and is enforced

exactly as a legal decision.

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CONCLUSIONS

As stated in the doctrine of the field, "the liberty of the forms" is a form

(manner) of liberty (p.n.)1. Indeed, there are relatively few other "legal

institutions beside "private arbitration" which materialize in such a "persuasive"

manner the escape from the "universal constrictor" (binding) and, most often, the

"implacable" (without alternative) manner of the legal form (civil trial).

Nevertheless, "the liberty of forms", promoted by the legal institution of

"private arbitration" does not mean "easiness" or, otherwise said "facile". On the

contrary, such as, probably, it resulted also from the analysis object of the

present doctoral thesis, "the private arbitration" is much more complex than it

seems at first sight and much more difficult to apply than, most often, practiced.

In addition to the provisions of the doctrine in the civil field, the

"complexity" and "difficulty" of the private language come, most likely, from its

immanent conditions and, particularly: the possibility of the litigants to choose

their judges; the organization by the parties of the arbitral procedure, as such.

To these notorious "difficulties" we add the possible (or certain) reluctance

of the "Romanian litigant" (mostly prone to dispute) to the valences of the

"agreement", including in "litigious matters".

Anyway, the "complexity" and "difficulty" of the private arbitration are

obscured by its indisputable advantages, from which we mention, also in this

context "the pacifist will" of the litigants, the "discretion" in solving a temporary

dispute and "promptness" in solving the litigation between them.

From the will to have a comprehensive, and especially convincing

"presentation" of the "valences" or private arbitration in Romania's legal system,

the doctoral thesis proposed is structured in six chapters, as following: Chapter I

(general aspects regarding private arbitration), Chapter II (organization of the

private arbitration), Chapter III (the arbitration convention), Chapter IV (the

arbitration court ); Chapter V (the arbitration judgement) and Chapter VI (the

arbitral decision). Actually, we have chosen this structure from the belief that, by

complying with the "succession" of the provisions of the Civil procedure code

established for private arbitration, we facilitate the legible presentation of the

vast theoretical and practical problems which accompany this legal institution.

1 See I. Deleanu, op. cit., p. 441.

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Our analysis is mainly founded on the logical and legal, systematic and

systemic approach of the regulations of the present Civil procedure code

established for "private arbitration". In this respect, our (scientific) approach

targeted the interpretation of the legal regulations established for "private

arbitration" as well as the identification of legal inaccuracies, and also the

substantiation of some relevant de lege ferenda proposals to eliminate them.

Without the intent to take credits which are not ours, we consider that the

proposed paper can constitute a "discussion base" for possible future doctrinaire

actions on this theme.

Also, without necessarily proposing a comparative analysis, under

numerous aspects we have found the existence of regulatory differences between

the procedure of private arbitration and the common law administrative

procedure, given that those differences are not determined by the "specificity" of

this special procedure. In the context we underline the "acute" absence of a text

in the present Civil procedure code which, as a principle, establishes the quality

of "common law" for the procedure of private arbitration of the regulations in the

Civil procedure code established for the administrative procedure.

For the scientific substantiation of the doctoral thesis, our scientific action

is according to the doctrinaire options expressed by leading scientific

personalities in the field of the "civil procedural law science", as well as the

outstanding university teachers I. Leș, I. Deleanu, O. Căpățână and I. Băcanu.

Also, without exaggerating, we have used some papers of foreign

doctrinaires, especially from France (given the "union" between the legal

systems of the two countries). In this respect, we mention M. de Boisséson, Ph.

Fouchard, E. Gallard and B. Goldman.

Finally, we express our belief that the "proliferation of private arbitration"

in Romania is not related so much to the "legal framework" which, in any way, is

generous, but especially to a certain level of the "civic and legal culture" of the

Romanian litigant.

Documents

DOCTORAL THESISdoctorate.ulbsibiu.ro/wp-content/uploads/Humelnicu-rezumat-engleza.pdf1 ministry of national education "lucian blaga" university of sibiu doctoral school field "law"